A federal judge has denied summary judgment to Wilson Sporting Goods and other sporting goods manufacturers, which were sued for patent infringement by a smaller company.
In so ruling, the court extended the life of a lawsuit brought by Everything Baseball, which claims that a chest protector that the defendants produced and marketed infringed upon a chest protector that it had invented.
The defendants had moved for summary judgment on the grounds that the plaintiff’s 226 patent is invalid as anticipated by three prior art references: U.S. Patent No. 5,530,966 (the ‘966 patent) issued to Joseph West; a chest protector manufactured and sold by Douglas, which embodies the ‘966 patent; and the “hang tag” attached to a chest protector manufactured and sold by Wilson under the trade name West Vest, which also embodies the ‘966 patent.
“The parties agree that to anticipate the ‘226 patent, at least one of the West references must demonstrate all of the following limitations: ‘a flexible main pad having…an abdomen portion’; ‘a flexible shoulder guard’ that extends ‘over the shoulder of a wearer’; and ‘adjustable straps attached at one end to the abdomen portion of the main pad.’ The parties also generally agree on the structure of the West references. Nevertheless, the parties’ positions on whether these references disclose the aforementioned limitations are diametrically opposed: [the] defendants assert that each West reference demonstrates all of the limitations, while [the] plaintiff argues that none of the references contains any of them. I need not examine all of these disputes, however, because even a single material dispute relating to each of the references is sufficient to deny summary judgment.”
Addressing the Douglas chest protector first, the court was “not persuaded that this reference indisputably contains ‘an abdomen portion’ as required by the ‘226 patent. When worn in what appears to be the proper position (as I assume was the case in the photographs defendants submitted in support of their motion), the Douglas chest protector comes down to just below the sternum, i.e., several inches above the navel, leaving a large portion of the abdomen exposed. I am thus baffled by [the] defendants’ contention that it is ‘self-evident from just looking at’ this reference that it has an abdomen portion. At the very least, whether the Douglas chest protector contains an abdomen portion is a question of fact for the jury. Accordingly, the Douglas chest protector does not anticipate the patent-in-suit as a matter of law.”
The court also was dubious about whether the ‘966 patent contains “a flexible main pad.” While the “defendants conceded that the ‘966 patent discloses a protective garment with an outer shell layer of plastic plates”, “they argue that the invention is nevertheless ‘flexible’ because 1) the inner portion of the garment is flexible, which satisfies the requirement that the reference contain a ‘flexible main pad,’ and 2) the assembly taken together is flexible because the plastic plates of the outer shell are themselves flexible and, in any event, are hingedly linked so as to be capable of folding when disassembled from the inner portion.”
The court, however, shared the plaintiff’s “skepticism that the term ‘main pad’ can be construed as referring to the ‘inner pad’ (rather than to the assembly of the inner and outer portions), which is how the phrase would have to be interpreted for defendants’ argument to win the day.”
The court went on to state that the defendants’ argument “fails because even assuming the presence of flexible hinges means the exterior shell cannot accurately be characterized as ‘rigid,’ reasonable minds can differ as to whether the ability of the stiff plastic plates to be ‘displaced’ about their axes–but not in any other direction–satisfies the requirement that the main pad be ‘flexible’ as that term is used in the patent-in-suit. A reasonable interpretation of ‘flexible’ as used in the ‘226 patent is that the main pad must be flexible in various directions, not merely among a particular axis or axes. Indeed, such an interpretation would support the patent-in-suit’s stated object of protecting a catcher ‘without restricting the catcher’s mobility’ which presumably is not limited to movement along the axes formed by the interconnected plates. In other words, the hinged movement among the stiff plastic plates disclosed in the ‘966 patent may render the invention non-rigid without rendering it ‘flexible’ as that term is used in the ‘226 patent. For at least these reasons, the ‘966 patent does not anticipate the patent-in-suit as a matter of law.”
The final reference upon which defendants relied was the Wilson “hang tag,” which is the tag attached to the product when it is sold commercially to consumers. “This reference depicts images of the product from the front, back and side, and identifies its ‘individual parts,’” wrote the court. “These drawings and descriptions are insufficient to demonstrate anticipation of the patent-in-suit as a matter of law.
“First of all, other than identifying what appears to be the inner layer of the garment as the ‘soft underpad,’ there is no evidence that any or all of the portion of the West Vest corresponding to the ‘main pad’ of the ‘226 patent is ‘flexible.’ The front view drawing depicts and identifies the following parts: collar plates; collar roll; shoulder cup; bicep pad; side chest plates; breast plate; sternum plate; soft underpad; ‘T’ hooks; and ‘T’ hook slots. It is not clear from the picture whether certain of these parts are overlapping or adjacent. I cannot discern, for example, whether the portion identified as the ‘breast plate’ overlaps with the parts identified as ‘side chest plates,’ or whether one of these plate ends where the other begins. Moreover, nothing tells me the extent to which the ‘plate’ components are themselves flexible or stiff, or how they are connected to one another, if at all. For at least these reasons, I cannot conclude as a matter of law that the Wilson ‘hang tag’ anticipates the patent-in-suit.
Everything Baseball v. Wilson Sporting Goods Company et al.; N. D. Ill.; No. 08 C 3840, 2009 U.S. Dist. LEXIS 37244; 5/4/09
Attorneys of Record: (for plaintiff) Lee F. Grossman, LEAD ATTORNEY, Niro, Scavone, Haller & Niro, Chicago, IL; Mark M. Grossman, Grossman Law Offices, Chicago, IL. (for defendant) Louis S. Chronowski , Jr., Michael R. Levinson, Seyfarth Shaw LLP, Chicago, IL. John P. Fredrickson, LEAD ATTORNEY, PRO HAC VICE, Michael T. Griggs, Boyle Fredrickson S.C., Milwaukee, WI; Allison Michelle Corder, Valauskas & Pine, Chicago, IL; Jeffrey A Pine, Valauskas & Pine LLC, Chicago, IL.
